War Zone Government Contractor Liability Under State Tort Law

Is there government contractor liability under state tort law for government contract operations in a war zone? An important case in this developing area of law is working its way through the federal courts.

On September 8, 2010, the United States District Court for the District of Maryland denied the government contractors’ motions to dismiss for lack of subject matter jurisdiction and ordered counsel for the Plaintiffs, Defendant government contractors, and the United States as amicus curiae to formulate a discovery plan in this multi-district jurisdiction case styled In Re KBR, Inc., Burn Pit Litigation.

Kellogg Brown & Root, Inc. (KBR, Inc.) had a government contract to treat water and to manage and dispose of waste at military bases in Iraq and Afghanistan. This is representative of the increasing role of government contractors in combat zones.

Plaintiffs including American soldiers, veterans, and former contractor employees filed forty-three complaints in forty-two states asserting state law tort claims against KBR Inc, Kellogg Brown & Root LLC, and Halliburton Company (government contractor Defendants). Plaintiffs claim that they were injured by exposure to contaminated water and to toxic emissions from burn pits. The Judicial Panel on Multi-District Litigation transferred the cases to the United States District Court, District of Maryland for coordinated and consolidated pretrial proceedings.

The September 8th decision examines the available case precedent and policy considerations inherent in these cases. The Court attempts to balance competing interests of exercising caution against Courts passing judgment on matters outside their realm of competence and in national security matters entrusted to other branches of government on one hand, and being willing to adjudicate cases that might ultimately expose defense contractors to appropriate liability on the other hand.

Defendants sought dismissal on three grounds: (1) the claims are nonjusticiable under the political question doctrine, (2) the Defendants are entitled to “derivative sovereign immunity” as a discretionary function under the Federal Tort Claims Act (FTCA), and (3) Plaintiff’s claims are preempted by the “combatant activities” exception in the FTCA.

The Plaintiffs’ strongest argument against summary judgment is that their claims are limited to activities alleged to have been negligently performed by Defendants in breach of their government contracts. Plaintiff assert that Defendants made decisions unauthorized by the military to use burn pits and to treat water. The Court appears persuaded by this assertion as it is loathe to second-guess the reasonableness of military decisions.

The Defendants dispute that they treated water or disposed of waste in violation of their contracts and without authorization.

The District Court decided it is necessary to develop the facts in order to identify unauthorized actions performed by Defendants. “The costs…of blanketing government contractors with the sovereign’s cloak of immunity at this early stage of the litigation are significant. In this case, Plaintiffs seek compensation for injuries resulting from exposure to burn pit emissions and contaminated water, which they allegedly would not have suffered absent what they claim were the Defendants’ decisions to breach [their contract] without the necessary military permission and to otherwise disobey military directives. Assuming the truth of these allegations, refusing such victims compensation and allowing Defendants’ alleged unauthorized conduct to go unredressed would be contrary to the most fundamental tenets of our legal system.” In re KBR, INC., Burn Pit Litigation, —F.Supp.2d—, 2010 WL 3543460 (D.Md.)

The Court denied Defendants’ motions to dismiss and attempted to place restraint on unlimited discovery by requiring the parties to the litigation, and the United States as amicus curiae, to confer and develop a proposed plan for carefully limited discovery consistent with the Court’s decision.

For another case discussing government contractor civil liability for conduct while performing as a contractor in support of military operations, see August 6, 2010 blog post.

Contact government contracts attorney Karen S. Hindson at (843) 720-3722 or (770) 939-3936 to discuss your government contract law issues.

407 comments

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are looking for in relation to your topic, you can use the free tool from google. just do a search for “google adwords keyword tool”, and you should be able to find it as the first result.write your topic in the

said because it so true. in order to succeed with internet marketing you need valuable content. the types of blogs that people feel like they cannot live without is what you should shoot for. they will miss it if you quit

relying on ads. advertisements don’t always work the way you want them to since your revenue depends on the readers’ actions when visiting your blog. if they choose to ignore the ads on your blog then there’s really nothing much that

your article out loud.6. provide as much value as possible.although this article is short in comparison to some, it still outlines in a clear and effective way the essential tips on how to write a good article. do you know that

post writing and gain your precious readers’ interest to your site:personal storiesyour personal experiences and unique insight give the reader a look as to who you are as a person. by telling a good story you can grab your audience and

the thing that provides effective solution to people who are desperately looking for relief from their problems. in other words, you can make money online by doing something other people would rather hire others to do for them. your job, therefore,

aloud (this technique has been a lifesaver!) 5. have someone else read your paper, and provide feedbackbrainstorming, paraphrasing and proofreading (bpp) are small, but effective tips to develop, and improve your writing skills. as we enter a modern an…

about. if that approach doesn’t offer any obvious imagery, try finding an image which reflects an analogy or story within your post, or perhaps a facial expression or image of someone engaged in an activity related to the topic. if you

searching for this topic. your topic should include the general range of products that most marketing companies sell.online jobs – thanks to the fact that many are finding it hard to get by, a lot of people will be looking for

only experience counts. an experienced blogger knows the ways in which a subject may be presented to viewers, and hence, his experience can only be of significant help. if you have a blog to deal with the expert deals with a

you are looking at focusing on generating targeted visitors by writing articles and blog posts centered around well researched keywords and key phrases, typically long-tailed key phrases. keyword research is a skill that you are going to want to master…

good passing angle to the post. there should be action opposite the ball to make the defense move, especially help-side defenders. proper spacing and backside movement will make it difficult to double the post and allow your post player more one-on-one

someone browses for the products or services you offer. while you may have tried various marketing tools and techniques, one of the important elements of online marketing is blog posting! a lot many companies forget this missing element and keep wonder…

many and the routine of submitting new content every day can put many off. with the adventure of submitting articles come the guidelines of each site you submit to.even the most successful writer needs reminding occasionally of the standards expected b…

writing and structure. the writing should read with ease and flow smoothly. check the formatting of the document as well. fonts should be the same throughout and it should look as professional as possible.the extra care taken will allow the employer

have been proven to be authoritative in article publishing.here are some techniques that could surely help you display your featured articles in wordpress blog.featured content slideshowthis plug-in is perhaps the best wordpress theme plug-in in terms…

content with keywords. the title should also be made with these keywords to be easily picked up by search engines.2. use of internal links – interlinking your blogs with other blogs will also increase your ranking.3. titles – the initial words

plan. when you do develop this plan, there are two parts of it that you need to pay close attention to. you need to look at content efficiency, and further optimization. after that, you can put together your plan.efficiency should always

maintain long-distance conversations this way, writing back as quickly as possible. this, however, can be disrupting their ability to do well in writing. when they write papers, they may slip into their “text-talk,” forget to spell out specific words…

that others can see your comment. if you created interest,readers will go to your site and that is where you present your products. if you really feel that you have a lot to say about the subject you are reading, don’t

audience will have, but make sure that you work on the assumption that you’re explaining the subject to the member of your audience with the least amount of knowledge on the topic.explaining these things can be difficult, so you should try

specifications (like i did here) a good query letter is not difficult to write if you remember to leave out the irrelevant. over the years, as a literary agent and someone who publishes other authors’ articles on my websites, i’ve seen

that he does, he has to have enough persistence to make it out of every puddle of rejection that he finds along the way. a limo blog? really? at first, the idea may seem a little far-fetched or maybe just a

voice.good listening skillsyou are beginning a dialogue, and part of all dialogues involves listening. encourage questions and comments and get involved with your audience by answering questions and replying to comments. view your blog statistics and n…

of work is a good way to get some instant cash flow while you pursue the other different ways to make passive income, which is the pathway that will lead to more significant income for the future.you could also become an

so blatant as to be comical. in others the copy has been designed to mislead even the sharpest minded consumers. it’s a good thing then that in today’s technological world we can turn to trusted review sites before making big purchases.for

require that you write very short content. unless you have some extremely valuable information, it’s hard to keep people’s attention for long. so write content that is short and gets right to the point.write “how-to” articles. a great way to increa…

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